Ferber Law

DESPITE LEGALIZATION OF CANNABIS, EMPLOYERS CAN STILL FIRE EMPLOYEES FOR TESTING POSITIVE

by Michelle R. Ferber and Julie Ann Giammona

Proposition 64, Adult Use of Marijuana Act (AUMA), effective January 1, 2018, makes recreational use of cannabis legal in California. Marijuana, for medicinal purposes, has been legal in California since 1996 under The Compassionate Care Act, provided the user has a medical marijuana card from a licensed healthcare provider. However, under federal law, the classification of cannabis has remained the same: a Schedule I illegal controlled substance, both for recreational and medicinal purposes.

Employers trying to sort through this maze of seemingly contradictory laws, may find themselves in a quandary when determining whether they are obligated to accommodate an employee’s use of cannabis. Two pre-AUMA cases both answered this question with a resounding “No.” First, in 2008, the California Supreme Court issued its seminal ruling in Ross v. RagingWire, concluding that the legalization of medical marijuana does not create a general right of use, but rather simply protects patients from criminal prosecution. RagingWire specifically held the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate applicants testing positive for cannabis, but instead employers may refuse to hire such applicants whose conduct violates the employer’s drug policy. Similarly, in 2016, a federal district court in California concluded that an employer does not violate FEHA by terminating an employee based on the employee’s use of marijuana, regardless of the reason for such use.

With the passage of AUMA, the tension between employers and employees has heightened because now an employee has the legal right to use marijuana for recreational purposes, but still has no job protection. Proponents of banning employer action against cannabis users note the discrepancy between alcohol and cannabis: traces of cannabis can be detected in a standard drug test six (6) weeks after use, yet the effect of smoking cannabis wears off after approximately 90 minutes (6-8 hours if cannabis is eaten); a worker hungover on a Monday from alcohol over the weekend would likely pass a standard drug test.

California Assembly Bill 2069, introduced in February 2018, attempts to address at least a part of this increasing tension by providing protection from workplace termination for medical marijuana patients. Specifically, if passed, the law would “prohibit an employer from engaging in employment discrimination against a person on the basis of his or her status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.” Because cannabis remains a Schedule 1 controlled illegal substance under federal law, the bill exempts employers operating under federal licensing requirements. It also specifically allows for disciplinary action against employees who show up to work impaired from the use of cannabis. Although AB 2069 does not address the total breadth of issues raised by the legalization of marijuana (it does nothing to protect recreational users), it may serve as the bridge to an obvious gap and start a larger conversation.

In the meantime, employers that have a zero-tolerance drug policy in effect, should review the policy to ensure that the policy specifically puts employees on notice that use of marijuana for medicinal and/or recreational purposes is strictly prohibited. Such drug policy needs to be consistently enforced. The attorneys at Ferber Law have expertise in preparing these policies and advising on how to implement and enforce. We look forward to working with you to ensure a drug free workplace while at the same time reducing your risk of being sued for wrongful termination or disability discrimination.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.